a new moral hazard? military intervention, peacekeeping and the

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Eric Neumayer A new moral hazard? Military intervention, peacekeeping and the International Criminal Court Article (Accepted version) (Refereed) Original citation: Neumayer, Eric (2009) A new moral hazard? Military intervention, peacekeeping and the International Criminal Court. Journal of peace research , 46 (5). pp. 659-670. ISSN 1460-3578 DOI: 10.1177/0022343309339246 © 2009 The author; published by Sage Publications This version available at: http://eprints.lse.ac.uk/20383/ Available in LSE Research Online: September 2010 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final manuscript accepted version of the journal article, incorporating any revisions agreed during the peer review process. Some differences between this version and the published version may remain. You are advised to consult the publisher’s version if you wish to cite from it.

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Page 1: A new moral hazard? Military intervention, peacekeeping and the

Eric NeumayerA new moral hazard? Military intervention, peacekeeping and the International Criminal Court Article (Accepted version) (Refereed) Original citation: Neumayer, Eric (2009) A new moral hazard? Military intervention, peacekeeping and the International Criminal Court. Journal of peace research, 46 (5). pp. 659-670. ISSN 1460-3578 DOI: 10.1177/0022343309339246 © 2009 The author; published by Sage Publications This version available at: http://eprints.lse.ac.uk/20383/ Available in LSE Research Online: September 2010 LSE has developed LSE Research Online so that users may access research output of the School. Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Users may download and/or print one copy of any article(s) in LSE Research Online to facilitate their private study or for non-commercial research. You may not engage in further distribution of the material or use it for any profit-making activities or any commercial gain. You may freely distribute the URL (http://eprints.lse.ac.uk) of the LSE Research Online website. This document is the author’s final manuscript accepted version of the journal article, incorporating any revisions agreed during the peer review process. Some differences between this version and the published version may remain. You are advised to consult the publisher’s version if you wish to cite from it.

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A New Moral Hazard? Military Intervention, Peacekeeping

and the International Criminal Court

Revised Version: August 2007

Eric Neumayer

London School of Economics and Political Science, Houghton Street, London WC2A

2AE, UK and Center for the Study of Civil War, International Peace Research

Institute Oslo, Norway. Phone: +44-207-9557598. Fax: +44-207-9557412. Email:

[email protected]

Website: http://personal.lse.ac.uk/neumayer

I thank three referees as well as Nils Petter Gleditsch for very helpful comments.

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Abstract

The newly established International Criminal Court (ICC) promises justice to the

victims of genocide, war crimes and crimes against humanity. Past offenders can be

punished, while future potential offenders may be deterred by the prospect of

punishment. Yet, justice is no substitute for intervention for the benefit of people at

acute risk of being victimized. The Court may create a new moral hazard problem if

the promise of ex post justice makes it easier for states to shy away from incurring the

costs of intervention. This article indirectly tests for the relevance of this potential

problem by estimating the determinants of ratification delay to the Rome Statute of

the ICC. I find that countries, which in the past have been more willing to intervene in

foreign civil wars and more willing to contribute troops to multinational peacekeeping

missions are more likely to have ratified the Statute (early on). This suggests that the

Court is a complement to, not a substitute for intervention.

1. Introduction

The creation of an International Criminal Court (ICC) has been hailed by many as a

major breakthrough in international law. Weller (2002: 693), for example, has called

it ‘the culmination of international law-making of the twentieth century’. Former

United Nations (UN) General Secretary Kofi Annan regards it as ‘a vital part of an

emerging system of international human rights protection’ (Annan 1997/98: 365).

Yet, the ICC is no substitute for humanitarian intervention and multinational

peacekeeping since at best it provides ex post justice together with the hope of

deterrence of future crimes, but no immediate relief and assistance to people at risk of

becoming the victims of grave offences. Critics have argued that the ICC might just

be a cheap way for states, which are unwilling or unable to intervene militarily abroad

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and to contribute to peacekeeping, to demonstrate to their domestic publics seeming

action against genocide, war crimes, aggression and crimes against humanity (Smith

2002). In other words, is the ICC a form of organized hypocrisy behind which states

hide who cannot or do not want to take real action?

This article attempts to answer this question indirectly by examining ratification

of the Rome Statute of the ICC. Specifically, we test whether countries that have been

more willing in the past to intervene militarily in conflicts abroad and who have

contributed more often troops to multinational peacekeeping are more or less likely to

have ratified the Rome Statute (early on). An answer to this question not only sheds

light on the likely motivations of state parties, it also informs a judgement of the

likely future effectiveness of the Court. The ICC is only as strong as its enforcement

capacity and it is dependent on states for crucial assistance during all stages of its

proceedings, particularly for the capture and extradition of indicted individuals. If

those states that are willing to commit troops for military intervention and

peacekeeping abroad were less likely to support the ICC, then this would bode badly

for the Court’s enforcement capacity.

In brief, the results from a stratified proportional hazard model over the period

1998 to 2005 suggest that, despite the notable opposition to the Court from the United

States, Russia, India, China and others, states that have been more willing to intervene

abroad and more willing to contribute to multinational peacekeeping in the past have

been more, not less, likely to ratify the Rome Statute (early on). Taking ratification as

an indication of revealed preference for ICC support, this suggests that the Court is

unlikely to function as a sorry excuse for inactive governments.

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2. The Rome Statute of the International Criminal Court

The idea for an ICC equivalent was briefly floated in the post-Second World War era,

but soon dumped in the wake of Cold War antagonism. It was reinvigorated by

Trinidad and Tobago in the late 1980s with the support of other Caribbean countries,

which wanted to see international drug trafficking and money laundering being

prosecuted by an international court. The International Law Commission, a UN expert

body of legal scholars, was charged with formulating a draft statute, a final version of

which was presented to the UN General Assembly in 1994 (Schabas 2004).

Encouraged by the establishment of the two ad hoc tribunals for Yugoslavia and

Rwanda, the General Assembly created a preparatory committee whose objective was

to formulate a draft treaty with much wider coverage and competence for a permanent

court to be established than initially envisioned by Trinidad and Tobago or the

International Law Commission.

At a conference in the Italian capital, the Rome Statute of the ICC was opened

for signature in July 1998 after five weeks of negotiation. International civil society,

in the form of the NGO Coalition for an International Criminal Court (CICC), exerted

an important influence on the negotiations of the Rome Statute, but only after the

decision to establish an ICC in principle had already been taken by states (Fehl 2004:

374). The Rome Statute entered into force on 1 July 2002 after having been ratified by

60 state parties. As of July 2007, the treaty had been ratified by 105 states. The four

most prominent non-parties are the United States, Russia, India and China.

After long negotiations, the state delegates present in Rome decided to include

four categories of crimes under the remit of the ICC (Art. 5:1): genocide, crimes

against humanity, war crimes and, at least in principle, aggression. These crimes are

considered so heinous that their punishment should be a matter of international

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concern and jurisdiction. The list of crimes can be added to at a review conference, to

be held seven years after the coming into force of the Rome Statute, i.e. in 2009.

Currently, it seems that state parties have little appetite for amending the list of

crimes. In fact, it is even doubtful whether they will give full effect to the aggression

category. This crime was formally included in the Statute, but essentially to no effect

since the negotiators at the Rome Conference could not agree on a definition of what

constitutes aggression and how it is to be prosecuted, leaving these essential details to

future amendments instead (Art. 5:2).

According to Art. 6, genocide covers ‘acts committed with intent to destroy, in

whole or in part, a national, ethnical, racial or religious group’. Of note, much like the

1948 Convention on the Prevention and Punishment of the Crime of Genocide, the

Rome Statute does not cover political and social groups within the scope of genocide,

which according to Schabas (2004: 40) has been frequently criticized. Art. 7 of the

Statute lists 11 acts of crimes against humanity, from the somewhat anachronistic

crime of apartheid to the widely recognized crimes of murder, torture and enforced

disappearance as well as ‘rape, sexual slavery, enforced prostitution, forced

pregnancy, enforced sterilization’, only very recently recognized as crimes against

humanity. Prosecution of such acts is always subject to the requirement that they are

‘committed as part of a widespread or systematic attack directed against any civilian

population, with knowledge of the attack’ (Art. 7:1). Art. 8 of the Statute represents

perhaps one of the greatest steps forward. Very explicitly, it extends the scope of war

crimes from international conflicts to civil wars (Schabas 2004: 54). It covers ‘grave

breaches of the Geneva Conventions’ together with ‘other serious violations of the

laws and customs applicable in international armed conflict’, but also ‘serious

violations of article 3 common to the four Geneva Conventions’ as well as ‘other

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serious violations of the laws and customs’ for civil wars. However, state parties can

opt out of the provisions for war crimes for a one-off transitory period of seven years

(Art. 124).

The Court can exercise jurisdiction over individuals whether or not their nation-

state is party to the ICC as long as the crime has been committed within the territory

of state parties. However, the Court requires the consent of either the state of the

accused national or the state, in which the crime took place, unless the case is referred

to the Court by the UN Security Council. Also, the Court is only meant to take action

under the principle of complementarity, i.e. only when a state ‘is unwilling or unable

genuinely to carry out the investigation or prosecution’ (Art. 17). Commanders can be

prosecuted for crimes committed by forces under his or her command if the

commander knew about the crimes and could have prevented them (Art. 28).

Conversely, offenders cannot take recourse to the argument that they committed

crimes upon superior orders (Art. 33). No offence can be prosecuted that took place

before the Rome State came into effect in July 2002 (Art. 11).

3. A potential moral hazard problem: the ICC as an excuse for inaction?

Most extant scholarship has focused on trying to make sense of US resistance toward

the ICC and has discussed at length the credibility and merits of the two main US

objections toward the Court – see, for example, Forsythe (2002), Mayerfeld (2003),

Fehl (2004), Schabas (2004), Weller (2004), Ralph (2005) and Johansen (2006). The

two main explicitly stated objections are the potential for abuse of the Court by enemy

states and the risk to US military personnel on active duty abroad (Bolton 2002).

Clearly, the Rome Statute could have been constructed in a way that would have

made it easy for the US to ratify. In particular, it could have allowed permanent

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members of the UN Security Council to veto any investigation and prosecution, thus

effectively enabling them to protect any of their nationals or those of their allies.

Doing so would have meant creating large “loopholes” in exchange for the benefit of

support by the US.

This proved unacceptable to the vast majority of negotiating states, however.

Instead, the parties chose an option that risked US withdrawal from the entire project.

The UN Security Council can defer investigations and prosecutions repeatedly for a

period of twelve months each (Art. 16), but none of its permanent members has the

power to veto the initiation of such proceedings in the first place. As a result, the Bush

administration withdrew Clinton’s signature under the Rome Statute and it began to

actively undermine the ICC by, first, refusing to support UN peacekeeping missions

unless US citizens are explicitly exempted from ICC proceedings and, second,

pressurizing state parties via the threat of economic and political sanctions into

concluding immunity agreements guaranteeing that no US citizens will be held or

extradited for the purpose of ICC proceedings (Johansen 2006). However, the Bush

administration has recently wavered a bit in its resolution to refuse co-operation with

the ICC. In particular, it has abstained from vetoing a UN Security Council vote

referring the Darfurian crisis in Sudan to investigation by the ICC in March 2005

(Grono 2006: 629).

The decision by the state parties to solve the crucial issue of the role and power

of permanent UN Security Council members in the particular way described above

has prompted critics to question the enforcement capacity of the ICC. Fehl (2004:

358), for example, wonders ‘…why was the new institution designed in such a way

that it failed to gain the support of the one country which is, by all accounts, most

important for enforcing its future decisions?’. This is a relevant question to ask, after

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all the US is in a unique position due to its quasi-universal deployment of troops and

infrastructure and its logistical and military capacity to intervene virtually anywhere

in the world.

Yet, this critique only scratches the surface of a potential problem that reaches

much further than the enforcement of future Court decisions. The very creation of the

ICC might present a fundamental problem, namely via the negative effect it

potentially has on humanitarian intervention and multinational peacekeeping. There

are two reasons why the ICC might have such a negative effect. One argues with a

direct deterrence effect, the other one with a potential moral hazard problem. The

former is a favourite argument of the US administration used in its opposition to the

Court. Let us briefly discuss each argument in turn.

The ICC may directly deter humanitarian intervention and peacekeeping if

those who intervene and contribute to peacekeeping must fear that their military

personnel may face future indictment for their actions by the ICC. As David Scheffer,

then US Ambassador-at-Large for War Crimes Issues has put it in addressing the UN

General Assembly in 1998: ‘The Rome treaty will become the single most effective

brake on international and regional peacekeeping in the 21st century.’ (cited in

Schmitt and Richards 2000). Similarly, US Major Michael L. Smidt (2001: 240)

contends that ‘the court will likely make the world a much more dangerous place

because it will likely deter the forces of good, which will allow the forces of evil to

act with impunity’. India, another prominent critic of the ICC and, contrary to the US,

a troop contributor to many multinational peacekeeping missions, has similarly raised

the issue of a negative effect of the ICC on peacekeeping operations and concern for

its army personnel involved in such operations as part of its case against ICC

ratification (Koshy 2004: 2439; McDoldrick 2004: 440).

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Such arguments are rather implausible, however. It is possible, of course, that

members of an intervening or peacekeeping force will commit crimes that fall under

the auspices of the ICC and might be indicted for them. But judged from past

experience, committing such crimes during interventions or peacekeeping missions is

the rare exception, not the rule, and would constitute cases that should be prosecuted

by the state to which these soldiers belong to itself, such that the ICC would never

become active in the first place. Neither is it likely that the ICC would become

politicised to enact dubious prosecutions against intervening forces. That the

International Criminal Tribunal for the former Yugoslavia (ICTY) quickly dismissed

charges against North Atlantic Treaty Organization (NATO) countries provides a case

in point. Rather, what the US seems to be concerned about is that the Court might

become active in the case of military interventions for which the humanitarian

justification is very dubious, like the invasions of Grenada and Panama in 1983 and

1989, respectively. Even then, however, it is difficult to see how the Court would

become active in the absence of a detailed provision for crimes of aggression.

The moral hazard problem is more pertinent and a priori more plausible. As

Smith (2002: 177) has formulated it succinctly: ‘If international actors feel confident

that human rights criminals will eventually be brought to justice, either in their own

countries or before the ICC, they may be less inclined to intervene to stop human

rights crimes while they are happening, something international actors have been

reluctant to do in any case.’ As a consequence, ‘the ICC may become a virtuous

excuse for states to turn a blind eye to atrocities, a moral free ride on the coattails of

humanitarian law’ (Smith 2002: 178).

Such suspicion and criticism is fuelled by the reaction of the international

community to the crimes committed during the Yugoslav wars and the Rwandan

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genocide. In both cases, states arguably failed to intervene or intervened far too late.

In both cases, states tried to make up for their failure by installing special ad hoc

tribunals to prosecute crimes ex post. Aryeh Neier (1998: 112), co-founder and then

director of Human Rights Watch, argues that the Yugoslav tribunal acted as a

substitute for action: ‘Facing domestic criticism for allowing the slaughter to continue

unchecked, some governments seemed to feel obliged to show that they were doing

something’, and without much actual political cost. Similarly, Forsythe (1994: 403)

has commented that European states ‘felt the need to give the appearance of doing

something about violations of humanitarian law in the former Yugoslavia’, but

‘lacking the political will to act decisively to curtail abuses of prisoners and civilians,

they endorsed or went along with the creation of the Tribunal’. Is something similar

happening with the ICC?

4. An Indirect Test for the Moral Hazard Problem

The potential moral hazard problem created by the ICC cannot be directly observed or

tested for. As an indirect test, we estimate the determinants of its ratification. The idea

is that if the ICC creates an excuse for states which are reluctant to act, then these

states should be the prime supporters of the Court, which should reveal itself via

(early) ratification. In other words, if the ICC represented a real moral hazard

problem, then states which have been relatively inactive in the past as interveners in

foreign humanitarian crises should be the prime supporters of the ICC. If these states

were the prime supporters of the ICC then this would suggest that the court functions

as a substitute for action (the moral hazard problem is very relevant). If the opposite

were the case – that is, if states which have been more active in the past were its

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prime supporters – then this would suggest that the ICC functions as a complement to

action, which would imply that the moral hazard problem is rather irrelevant.

For this argument to be valid, it must not be the case that countries which have

been active in the past ratify (early on) precisely because they are anxious to get the

ICC established such that they have an excuse for being less active in the future. I

contend that this is a safe presumption to make for either one of two reasons. First, if

preferences for intervention in foreign humanitarian crises are allowed to differ across

countries, then those countries which have been more active in the past may have a

stronger taste for intervention than less active countries and since preferences have

not changed will keep having this stronger taste. Second, if preferences for

intervention are assumed to be equal across countries, then the side constraints they

face will still differ. If domestic public pressure has managed to induce certain

countries to be more active in the past than others even in the absence of an ICC, then

it is likely that this same domestic public will manage to impose enough pressure on

its government to remain active in the future as well even after the ICC has been

established since the domestic pressure groups certainly regard the ICC as a

complement to action, not as a substitute.1 It is the countries, which have managed to

withstand pressure for action in the past that are likely to be tempted by the potential

moral hazard created by the ICC. For these countries, the establishment of an ICC

could potentially represent a means to deflect criticism toward its inaction, thus

enabling them to remain inactive in the future.

This is not to say that the establishment of the ICC could not represent a moral

hazard in a specific case even for a country, which has been a rather active intervener

1 See, for example, the NGO “Coalition for an International Criminal Court” website at

http://www.iccnow.org/.

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in the past. Even a generally active country may use the existence of the ICC as a

means to deflect criticism toward its inaction due to the particular contextual

circumstances of the specific case at hand (for example, because the country is on

friendly terms with the offending government). However, one would expect that other

more active countries would be willing to step in, unless intervention similarly goes

against their interests. What this means, in sum, is the following: If states which have

been relatively inactive in the past are the prime supporters of the ICC, then this

would suggest that the moral hazard is very relevant, whereas the moral hazard is less

relevant if it is mainly supported by countries that have been rather active in the past.

But even then, the moral hazard still exists and may, depending on the circumstances

of the specific case, represent more or less of a problem.

A final critical hurdle for the indirect test of the moral hazard problem to work

is the presumption that countries are generally under pressure to act in foreign

humanitarian crises. If there is no such pressure, then there is no need to deflect

criticism for inaction and the ICC cannot exert any moral hazard for countries

unwilling to act. The liberal democracies of developed countries of the world are

more likely to experience such pressure domestically than developing countries due to

their stronger civil society and due to their commitment to human rights protection

(Andersson 2002; Lebovic 2004). However, even developing countries can be under

pressure from the outside. Several observers have attributed the increasing role of

developing countries in post-Cold War peacekeeping missions to pressure from

developed countries (see, for example, Byman and Waxman 2002; Pugh 2004;

Neethling 2004). The main result of this article’s analysis upholds if the sample is

restricted to developed countries only. It is thus robust to excluding developing

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countries from the sample, for which the moral hazard problem may be less of an

issue in the first place.

5. Research Design

As mentioned already, our indirect test of the moral hazard problem works via

estimating the determinants of ratification of the Rome Statute. To be precise, I

estimate the determinants of ratification delay with an event type model. Such a

model uses more information than a pure cross-sectional probit or logit model with a

simple ratification dummy as dependent variable. The extra information used is the

time delay between the opening of the Rome Statute for signature and ratification

until eventual ratification, for those countries that have ratified. The event type model

thus not only distinguishes between ratifiers and non-ratifiers, but it further

distinguishes among the ratifying countries between early and late ratifiers, assuming

that early ratification reveals stronger support for the ICC than late ratification. This

can be justified on two accounts: First, early ratification increases the probability that

an international treaty will come into force as typically a minimum threshold of

ratifications needs to be exceeded (60 in the case of the Rome Statute). Second, the

more countries ratify early on, the more credibility the treaty gains and the higher the

pressure on remaining states to ratify the treaty as well. Strong supporters of a treaty

should thus not merely ratify a treaty, but will be keen to ratify early on.

Data on the year of ratification, acceptance, approval or accession of the Rome

Statute is taken from United Nations (2007). The country year rather than country day

forms the basis of our sample since the control variables are only available on an

annual basis. Smith (2004) argues that there are distinct regional norms of state

participation in the ICC following from preference heterogeneity across regions. To

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account for this possibility, we use a stratified Cox proportional hazard model, where

we stratify by regions following largely World Bank country classification.2 This

allows each region to have its own baseline hazard. Formally, the dependent variable

is the conditional probability ρ(t) that ratification occurs at time t given that the

country has not ratified before t; this is the hazard of ratification:

ρi(t) = ρ0i(t)exp(Tx(t)), (1)

where i stands for the ith stratum (region), ρ0i(t) is the “baseline hazard”,

differing between regions (but uniform within a region), and T is the vector of

parameters to be estimated. The time-variant underlying baseline hazard of

ratification may depend on unobserved variables, possibly in complex ways. An

advantage of the Cox model is that the baseline hazard does not need to be estimated.

The likelihood function is constructed using the observation that the probability that

country i ratifies at time ti equals

ijij ttjii

Tii

T

ttjij

iiii t

tt

tt

||

))(exp())(exp(

)()(

)(̂xβ

. (2)

The likelihood function to be maximized with respect to the vector T then

equals it ii t )(̂ .

The two central explanatory variables are military intervention abroad and

contributions to peacekeeping. I use the Uppsala/PRIO dataset as source for the

variable measuring intervention in foreign civil conflicts (Gleditsch et al. 2002). The

specific measure used is the sum of country years in which a country intervened in a

foreign civil conflict since 1990, weighted by conflict intensity. The decision to use

2 The difference is that Canada and the US form one region together with Central America and the

Caribbean and South American countries constitute their own region.

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1990 as a cut-off point is to account for the fact that the world fundamentally changed

after the end of the Cold War. The measure is weighted by conflict-intensity since it

takes much more courage and commitment to intervene in more intense foreign

conflicts. No attempt was made to distinguish “humanitarian” intervention from “self-

interested” interventions since there is no objective way of doing so. Data on

contributions to peacekeeping are taken from a database of the Stockholm

International Peace Research Institute (SIPRI), available at

http://conflict.sipri.org/SIPRI_Internet/. The specific measure used is the sum of

country years in which a country contributed troops to a multinational peacekeeping

operation abroad since 1990, whether led by the UN, by a regional inter-governmental

organization or by an ad hoc group of states.

There are six control variables. Democracy is measured by Polity data and

accounts for the fact that democracies are much more likely to ratify international

human rights treaties (Landman 2005). Per capita income accounts for the possibility

that demand for the ICC may be a normal good, using data from World Bank (2006).

The remaining control variables are meant to capture the expected future potential

costs of ratification to the ratifying state, its leaders and citizens. Note that since no

offences prior to the entry into force of the Rome Statute can be prosecuted and the

Court will exert its major impact only in years to come, the variables we use

approximate the future costs of ratification by looking at potentially offensive

behaviour in the past. This will be a good proxy for expected future costs of

ratification only if one is willing to make the assumption that states which have

engaged in potential offences in the past (or rather their political leaders) have a taste

for and are therefore likely to commit such potential offences in the future.

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To start with, we include a variable measuring the sum of country years since

1990, in which a genocide or politicide has taken place in a country, weighted by the

intensity of the crime, with data taken from Harff (2006).3 Despite the fact that the

Rome Statute covers only genocides explicitly, not politicides, we do not exclude

politicides from this measure since they are likely to fall under the category of crimes

against humanity. Empirically, it makes little difference to our estimations if we

exclude politicides.

To our knowledge, there is no data measuring war crimes. In its absence, we use

data on conflict involvement. Put simply, the argument is that nationals from a

country that is involved in more and more intense armed conflicts are more likely to

be indicted for war crimes. The link may be weak, but we see no other way of

capturing this aspect. The specific variables we use are the sum of country years since

1990, in which a country was involved in an international or civil armed conflict,

weighted by conflict intensity, using again data from the Uppsala/PRIO project. The

last control variable is the number of times a state has initiated an international armed

conflict since 1990, using and slightly extending data from Gleditsch (2004). Whilst,

as discussed above, aggression is not a fully specified crime under the auspices of the

Rome Statute yet, this may change in the future, which may deter states with a

preference for initiating international conflicts from ratifying.

3 Genocide and politicide are defined as events involving ‘the promotion, execution, and/or implied

consent of sustained policies by governing elites or their agents or in the case of civil war, either of the

contending authorities that result in the deaths of a substantial portion of a communal group or

politicized non-communal group. In genocides the victimized groups are defined primarily in terms of

their communal (ethnolinguistic, religious) characteristics. In politicides, by contrast, groups are

defined primarily in terms of their political opposition to the regime and dominant groups.’

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6. Results

Table 1 presents the Cox regression results. To start with, the sample includes both

developed and developing countries. The military intervention and peacekeeping

variables have positive and statistically significant coefficients in columns I and II,

respectively, when entered separately to the control variables. They remain significant

when entered together in column III. Countries that intervene more in foreign civil

conflicts and contribute more to multinational peacekeeping abroad are therefore

statistically significantly more likely to have ratified the Rome Statute (early on).

< Insert Table 1 around here >

With respect to the control variables, democracy is a clearly statistically

significant positive determinant of ratification, but per capita income has no effect. A

history of initiating wars deters countries from ratifying, as does involvement in

international armed conflicts (the coefficient is marginally insignificant in column I).4

Experience of civil war does not reduce the likelihood of a country ratifying. Neither

does a history of genocide and politicide.

In columns IV to VI we repeat the set of estimations for a sample of only

developed countries (member countries of the Organisation of Economic Co-

operation and Development or the European Union).5 As mentioned before, this is to

account for the fact that the pressure to become active may be far lower in developing

4 Goodliffe et al. (2006) similarly find that the expected costs of ratification deter some countries from

ratifying.

5 The genocide/politicide history variable is dropped since no developed country experienced such an

event during the relevant time period.

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countries compared to developed countries, such that the moral hazard may be less

relevant in developing countries in the first place. Despite the substantial loss of

observations and therefore of efficiency of estimation, the results show that both the

intervention in foreign civil conflicts and the contribution to multinational

peacekeeping variables remain statistically significant if entered on their own. If

entered together, the peacekeeping variable is still significant, whereas the

intervention variable is not. This is likely to be due to the high correlation between the

two variables (r = 0.62 in this sample). A chi-squared test rejects the hypothesis that

both variables are equal to zero at p > 0.0057.

7. Conclusion

The ICC represents a milestone for the international human rights movement. For the

first time in the history of humankind, there exists the general possibility of

prosecuting political leaders as well as ordinary citizens who have committed crimes

of genocide, war crimes as well as crimes against humanity before an international

court with quasi-universal jurisdiction. The ICC currently investigates allegations in

four African countries – Central African Republic, Democratic Republic of Congo,

Sudan and Uganda – and it has initiated its first trial against Congolese national

Thomas Lubanga Dyilo, indicted for war crimes.

Critics have argued, however, that the establishment of the ICC may create a

new moral hazard. States reluctant to intervene militarily and to contribute to

multinational peacekeeping may use the existence of the ICC as an excuse for their

inaction. It may allow states to reassure their domestic publics that something is done

and that crimes can no longer be committed with impunity, without incurring the

substantial costs for preventing those crimes in the first place. The vague promise of

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ex post justice would then be likely to replace immediate protection. The implication

of this would be that the ICC on the whole could represent a step back rather than

forward in the quest for protecting victims of genocide, war crimes and other crimes

against humanity.

The existence and actual relevance of this possibility for a new moral hazard

problem is difficult to ascertain directly. This article has offered an indirect test.

Specifically, if the moral hazard argument applies, then those states which have been

rather reluctant to intervene militarily and to contribute to multinational peacekeeping

in the past should also be the prime supporters of the ICC and therefore be the first

ones to ratify its Rome Statute. However, we find the exact opposite. Those states that

are willing to play an active role in interventions and peacekeeping are also, on

average, the prime supporters of the ICC. It would therefore appear that the ICC is not

a sorry excuse for inactive states, but another strategy for active states to combat

situations in which acts of genocide, war crimes as well as crimes against humanity

can happen and can be committed with impunity.

Yet, given the indirectness of our test for the moral hazard created by the ICC,

only the future will tell whether the ICC will complement or substitute action. The

current situation in Darfur, Sudan, does not provide a clear picture. On the one hand,

several hundred thousand people have already reportedly been killed and while there

is the will from several, mainly Western and African states to intervene in a

meaningful way, this has yet to happen. The case is under ICC investigation following

a referral by the UN Security Council, but it appears that this move was part of a

strategy to increase pressure on the Sudanese government to facilitate real protection

of people at risk rather than a substitute for intervention.

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Another caveat is that there remains the possibility that the existence of the ICC

creates an incentive even for a state, which has been rather active in the past, not to

intervene in a specific case if intervention goes against the state’s interests. That is,

even if in general the ICC does not represent a moral hazard, it can do so for specific

countries in specific cases. However, on the whole the fact that the ICC is primarily

supported by states, which have been active in the past, suggests that it will function

as a complement to, not a substitute for action. If accompanied by action, the ICC can

form an important step forward in the protection of victims. Our estimation results

paint a cautiously optimistic picture in demonstrating that the ICC has been ratified

early on by states, which have been willing to act in the past. This bodes well for the

ICC and its future contributing role to the fight against heinous political crimes,

despite continued opposition to the Court from the US in particular, but many other

countries as well, including China and India.

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Table 1. Ratification of the Rome Statute to the International Criminal Court.

I(all)

II(all)

III(all)

IV(developed)

V(developed)

VI(developed)

Democracy 0.119 0.103 0.104 0.045 0.032 0.080(5.18)*** (4.51)*** (4.50)*** (0.28) (0.20) (0.48)

GDP per capita 0.000 -0.000 -0.000 -0.000 -0.000 -0.000(0.14) (0.22) (0.31) (0.71) (1.41) (1.30)

Genocide/politicide history -0.118 -0.079 -0.090(0.51) (0.53) (0.51)

International war history -0.129 -0.152 -0.178 -0.295 -0.046 -0.411(1.56) (1.80)* (2.04)** (0.64) (0.11) (0.88)

Civil war history -0.026 -0.037 -0.030 -0.169 -0.222 -0.205(0.89) (1.22) (0.98) (2.16)** (2.85)*** (2.43)**

War initiation history -0.765 -0.689 -0.941 -0.423 -0.564 -0.441(1.88)* (1.77)* (2.41)** (0.72) (1.01) (0.78)

Intervention in foreign civil wars history 0.157 0.118 0.239 0.152(2.38)** (1.78)* (1.97)** (1.15)

Multinational peacekeeping history 0.021 0.019 0.030 0.026(2.52)** (2.16)** (2.68)*** (2.09)**

# of countries 151 151 151 35 35 35of which have ratified in study period 75 75 75 30 30 30

Observations 609 609 609 117 117 117Log pseudolikelihood -201.9 -200.8 -200.1 -54.5 -53.7 -53.4

Analysis is by Cox proportional hazard estimation, stratified by regions. Absolute z-values in parentheses. ***, **, and * indicate significance at

the .01, .05, and .10 levels, respectively.